IN THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail
Application No.188 of 2025
|
DATE |
ORDER WITH
SIGNATUREs OF JUDGEs |
For
hearing of bail application
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26.05.2025
Mr. Javed
Ali Brohi, advocate for applicant
Ms. Seema Zaidi, Additional Prosecutor General Sindh
M/s Muhammad Dawood
Narejo, Kamran Ali and Mujahid
Hussain Bhutto, advocates for complainant
IO/DSP Qurban
Mallah of PS Sujawal
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Applicant/accused
Muhammad Saleh son of Ladho
seeks post arrest bail in FIR No.114/2022, registered at P.S. Sujawal for offence under sections 302, 120-B, 109, 201,
34, PPC, after rejection of his bail plea by learned Additional Sessions Judge-I,
Sujawal, vide order dated 07.11.2024.
2. Facts
of instant case as disclosed in the impugned order are that on 12.06.2023 Abdul
Sattar son of Bag Ali Jatoi
lodged FIR at PS Sujawal stating therein that his
maternal nephew Ismail son of Ghulam Muhammad Jatoi aged 41 years was dealing in cattle business and Sikandar son of Bachayo Gaho resident of village Gul
Muhammad Gaho obtained loan from him. On 08.06.2023
complainant was present in his house when deceased Ismail went to Darro City to receive the said credit amount from Sikandar Gaho. Thereafter, he did
not return said night. Complainant tried to contact him but his mobile phone
was switched off. On 09.06.2023 complainant reached Darro
city and contacted Sikandar Gaho,
who disclosed that on 08.06.2023 he along with Saleh Mallah and Khamelo Gujrati Bhangi and others reached
Thatta with Ismail and after withdrawal of amount
from Khushhali Bank handed over the money to Ismail
and Ismail left Thatta for Tando
Muhammad Khan. Thereafter, complainant tried to contact on the mobile phone of
Ismail but his phone was switched off. On 10.06.2023 complainant along with Javed son of Ghulam Muhammad and
relative Ali Asghar son of Muhammad Ilyas Jatoi reached Darro city and met with Sikandar Gaho who after compulsion disclosed that on 08.06.2023 he along
with Saleh Mallah and Khamelo Gujrati Bhangi, with the help of his other friends over dispute of
money brought Ismail to village Amb Sodho, committed his murder by causing hatchet injuries and
dead body was thrown inside fish pond. Complainant visited at fish pond and
found dead body with injuries. Hence this FIR.
3. Learned
counsel for applicant submits that applicant/accused is innocent and he has
been falsely implicated in this case; that there is extrajudicial confession of
co-accused, which is inadmissible, therefore, his case requires further inquiry
in terms of Section 497(2), Cr.PC.
4. On
the other hand, learned Additional Prosecutor General Sindh, assisted by
learned counsel for complainant, opposed for grant of bail on the ground that
applicant is nominated in the FIR with the allegation that he committed murder
of deceased; that alleged offence falls within the ambit of prohibitory clause
of Section 497, Cr.PC.
5. Heard
learned counsel for applicant as well as learned Additional Prosecutor General
Sindh, learned counsel for complainant and perused the material available on
record.
6. It
is alleged in the FIR that co-accused Sikandar has
made extrajudicial confession regarding involvement of applicant in the alleged
offence. No doubt statement of co-accused before police or private person is
not admissible under Article 38 and 39 of the Qanun-e-Shahadat Order, 1984 but its Article 40 pertains to "evidence of fact discovered in consequence of information given
by accused." It essentially deals with how a fact discovered
because of information provided by an accused person can be used as evidence. Since
the applicant is nominated in the FIR with the allegation that he committed
murder of deceased and the alleged offence falls within the prohibitory clause
of Section 497, Cr.PC, which disentitles him for
grant of bail unless he has to prove his case for further inquiry. Learned
counsel for applicant mainly contended that learned trial Court has granted
bail to co-accused Muhammad Rafiq. Perusal of bail
granting order of co-accused Muhammad Rafiq shows
that only role of abetment has been assigned to him whereas role assigned to
the present applicant is different from that of co-accused Muhammad Rafiq, therefore, rule of consistency does not apply in instant
case. Resultantly, instant criminal bail application is dismissed.
However, learned trial Court is directed to conclude the case of the applicant
expeditiously, preferably within a period of 3 months.
7. Needless
to mention here that the observations made herein above are tentative in nature
and would not prejudice the case of either party at trial.
J U D G E
Gulsher/PS